Virtual Mediation–Alternative Dispute Resolution has moved (kicking and screaming) into the virtual world. My firm has handled over a dozen virtual mediations and arbitrations in the past few weeks and here is what we have learned:
-Virtual mediation can work. During lockdown, with the courts out of commission, attorneys have time to mediate. You can prep your clients, remotely of course, and write up pre-mediation statements to submit to the Mediator. One obstacle to mediation is just scheduling the darn thing. We spend valuable time trying to juggle the crazed schedules many attorneys and parties keep (or at least used to keep pre-pandemic.) So that obstacle is now gone; we can actually get the mediation on the calendar.
-The Process is the same, but different. Zoom allows for private breakout rooms so we can separate out and have confidential conversations. It’s not flawless and takes some time for the Mediator to jump from room to room. I encourage the attorneys and parties to attend to other work activities during their down time, whether in virtual or real-time mediation.
-Consider exchanging pre-mediation statements with your opponent. For years, Plaintiff’s PI attorneys have shared pre-mediation statements with Defendant’s counsel several weeks before the mediation. Their reasoning was to give the Defendant a good sense of the seriousness of the case and a dollar demand. If the demand pops up into the excess insurance layer, we want to make sure the excess insurer has notice of the claim and perhaps participate in the mediation. This has to happen well in advance of the mediation and usually requires weeks or months. Sharing the pre-mediation statement with your opponent the day before is ineffective.
-Virtual mediation is a cold medium and the exchange of information, which is always so important, takes on an even more crucial role. Give your opponent and mediator your best points in advance. Make your pre-mediation statement short but full of punch.
-Test technology before the mediation. Set up a test Zoom meeting or whatever other program you are using a day or even a few days before the actual mediation. Schedule it for the same time of day as the real mediation so you test bandwidth capacity. Exchange cell phone and emails addresses in advance and have your cell phone turned on and resting next to you.
-Expect problems and be prepared to handle them. Call, text or email when problems arise (and they will arise.)
_Be patient. Virtual mediation will seem slow and clunky. Hunker down and set aside time to do it right. Consider going to the office, if you can socially distance there, and take advantage of the quiet. Have your coffee, water and snacks nearby.
-Wear your house slippers and yoga pants, PJ bottoms or gym shorts! Gotta be all business from the waist up, but waist down is up to you. Dressing comfortably can help us all get through this.